NEW<\/span>You can now listen to Fox News articles!\n <\/p>\n<\/div>\n A federal appeals court ruled earlier this week that a now-fired Oregon school counselor\u2019s display of books promoting binary gender views to students was not protected by the First Amendment.<\/p>\n The 2-1 decision handed down by the 9th U.S. Circuit Court of Appeals on Tuesday upheld Roderick E. Theis II\u2019s termination from Oregon\u2019s InterMountain Education Service District (IMESD), according to court documents obtained by Fox News Digital.<\/p>\n The court also rejected Theis\u2019 appeal.<\/p>\n CHICAGO COLLEGE REMOVES LGBTQ PRIDE FLAG OVER INSTITUTIONAL NEUTRALITY CONCERNS<\/strong><\/p>\n Security guards stand in front of the Ninth U.S. Circuit Court of Appeals in San Francisco, Calif., on June 12, 2017.<\/span> (Getty Images)<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n According to the ruling, Theis, an education specialist who worked for the IMESD for more than 15 years, displayed books titled “He is He” and “She is She” in two separate offices on different campuses when meeting with middle school students.<\/p>\n He also displayed a children\u2019s book penned by conservative commentator Matt Walsh, titled “Johnny the Walrus,” that “allegorically comments on transgender issues,” court documents said.<\/p>\n Following an investigation into the incident, Theis told school administrators that he did not mean any harm by displaying the books and even considered putting them away when transgender-identifying students visited his office.<\/p>\n WISCONSIN TEACHER FIRED AFTER SOCIAL MEDIA POST ADVOCATING TO ‘MAKE AMERICANS GREAT ASSASSINS AGAIN’<\/strong><\/p>\n The InterMountain Education Service District in Oregon, where Roderick E. Theis II worked for more than 15 years as an education specialist serving middle school students.<\/span> (Google Maps)<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n However, IMESD concluded the display of the books was a “bias incident” and instructed the counselor to remove them from his school offices \u2014 or risk termination.<\/p>\n A federal judge later partially granted Theis\u2019 request for a protective order that allowed him to continue displaying the books in his offices when students were not visiting, but his employment was ultimately terminated after a district investigation revealed Theis provided the books to middle school students who had requested to see them, according to the ruling.<\/p>\n Theis\u2019 attorneys went on to argue that the counselor was protected from the injunction when meeting with students outside of their official sessions, but a lower court later ruled that the partial injunction prohibited Theis from displaying the books when students were present in his office.<\/p>\n GOP LAWMAKERS URGE SUPREME COURT TO STRENGTHEN FIRST AMENDMENT PROTECTIONS FOR STREET PREACHERS<\/strong><\/p>\n The 9th U.S. Circuit Court of Appeals upheld the firing of Oregon school counselor Roderick E. Theis II over his display of books promoting binary gender views to middle school students.<\/span> (iStock)<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n The lower court, however, issued another ruling against Theis\u2019 termination appeal.<\/p>\n The ruling was upheld by the 9th U.S. Circuit Court of Appeals on Tuesday, with the majority opinion outlining longstanding precedents that an educators\u2019 speech is considered government speech when interacting with students.<\/p>\n “As a government employee, Theis was assigned to work in school offices, meet with students, and carry out his duties in that setting,” Circuit Judge John B. Owens wrote in the majority ruling. “His speech occurred in the course of those responsibilities and cannot be meaningfully separated from them. As such, Theis\u2019s speech falls outside the First Amendment\u2019s ambit.”<\/p>\n CLICK HERE FOR MORE COVERAGE OF MEDIA AND CULTURE<\/strong><\/p>\n The sole dissenting opinion, written by Circuit Judge Lawrence VanDyke, sharply criticized the ruling. VanDyke argued that Theis\u2019 books should be considered personal decorative items in his office, while questioning if a school could permit employees to hang pro-Palestinian banners while simultaneously banning the display of the Israeli flag.<\/p>\n CLICK HERE TO DOWNLOAD THE FOX NEWS APP<\/strong><\/p>\n “Could public school administrators establish a policy allowing office decoration with partisan political messages deemed sufficiently \u2018compassionate,\u2019 but prohibit \u2014 as inherently hostile\u2019 \u2014 any political speech that did not align with the Democratic Socialists of America platform?” VanDyke wrote.<\/p>\n Fox News Digital reached out to Theis\u2019 attorney and the IMESD for comment.<\/p>\n <\/p>\n![\"Security](\"https:\/\/a57.foxnews.com\/static.foxnews.com\/foxnews.com\/content\/uploads\/2026\/07\/1200\/675\/ninth-circuit-court-of-appeals-san-francisco.jpg?ve=1&tl=1\")
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